SANJEEV KUMAR Vs. STATE OF U P

JUDGEMENT

(1.) Heard learned counsel for the petitioners, learned counsel for the Nagar Nigam, Varanasi, respondent No. 5, learned counsel for the Jal Nigam, Varanasi - respondent No. 6 and learned counsel for the State. This writ petition has been preferred by some residents of the D.I.G. Colony (Prashantpuri), Varanasi because they are aggrieved by the decision of the concerned respondents to permit use of part of a park in that colony for construction of an overhead water tank. Petitioners have prayed for quashing of an approval granted under Rule 7 of the Uttar Pradesh Parks, Play-grounds and Open Spaces (Regulation and Control) Rules, 2005 (hereinafter referred to as the 'Rules'), dated 7.4.2011 and also communication dated 7.6.2011 contained in Annexure 1. Petitioners have also prayed for a mandamus to direct the respondents to stop the construction work in the park and restore the park to its original status.

(2.) Learned counsel for the petitioners has first taken us to the provisions of The Uttar Pradesh Parks, Play-grounds and Open Spaces (Preservation and Regulation) Act, 1975 (hereinafter referred to as the 'Act') to draw our attention to definition of 'park' under Section 2(b) and to prohibitory provisions under Sections 6 and 8 of the Act. As per definition, park means a piece of land without buildings or of which not more than one-twentieth part is covered with buildings, further such land should be laid out as a garden with trees, plants or flower-beds or as a lawn or as a meadow and maintained as a place for the resort of the public for recreation, air or light. This definition applies to the word 'park' in the Act unless the context otherwise requires.

(3.) On the basis of such definition, it has been submitted that if the water head tank is constructed, the area covered with buildings will be more than one-twentieth part of the total piece of land available as park and, therefore, the rest of the land will not be a park protected by the provisions of the Act. It has further been submitted that under Section 6 of the Act the purpose for which the park was being used on the date of commencement of the Act, cannot be changed without previous sanction of the Prescribed Authority. Similarly, it was pointed out that Section 8 of the Act prohibits construction of buildings etc. without the previous sanction of the Prescribed Authority, if such building or structure is likely to affect the utility of the park, play-ground or open space. Reliance was also placed upon Rule 7 of the Rules framed under the provisions of the Act. It also contains prohibition upon erection or setting up of any wall, fence, rail, post, step, booth or other structure whether fixed or movable and whether of a permanent or a temporary nature or any fixture in or upon any park so as to create an obstruction or encroachments upon parks except with the written permission of the Prescribed Authority or any officer authorised in this behalf. The Rules also reiterate that a park approved by the Prescribed Authority under Rule 5 shall not be used for any purpose other than the purpose for which it has been made for without written permission of the Prescribed Authority.